Fearn v. State, 90 So. 37

BRICKEN, P. J.

The defendant was indicted, tried, and convicted for the offense of buying, receiving, or concealing, or aiding in concealing, certain personal property, knowing that it had been stolen, and not having the intent to restore it to the owner; the value of the property being sufficient to constitute the offense a felony.

[1] There were but two exceptions reserved to the rulings of the court upon the testimony. When state witness Lackey was being examined on direct examination, the solicitor propounded to him the following question: “You and Percy (the defendant) knew that they were stolen?” No objection whatever was interposed to this question, and the witness answered in response thereto “Yes, sir.” The court properly overruled the objection then interposed, as it came too late. A party cannot be permitted to speculate ¡ upon tlie’ answer of a witness, and, if when given it is not satisfactory, move to exclude the answer. It is necessary to direct tlie objection to tbe question when propounded, and not to the answer which was*made without objection.

[2, 3] Defendant’s witness Jim Patton testified, among other things, “that on the night in question he met Nelse Lackey [state witness] down there by the Baxitist Church, and he had a bundle in his hand.” Whereupon defendant’s attorney asked the (his) witness, “Did he [Nelse Lackey] say anything to you about having any tires, or about any tires being stolen, or having been stolen that night?” The state objected to this question, which was sustained. There was no error in this ruling. If the question was asked for the purpose of impeaching the witness Lackey, no predicate had been laid, as the elementary rules of evidence require; it was therefore inadmissible for this purpose. If the question was asked for the purpose of showing a part of the res gestas that fact was not made known to the court, which was necessary in order to put the court in error as a result of this ruling. The question upon its face appeared inadmissible and illegal, and the court properly so held.

[4, 5] The refusal of charge 7 requested by the defendant was without error. It was more or less argumentative, but, from the evidence in this case as shown by tlie record, was wholly abstract, as there is nothing in this record to show that any promise of immunity of any character had been made to witness Nelse Lackey, and, so far as the record shows, this witness testified freely and voluntarily in the case, and the court properly and clearly charged the jury that, if they found from the evidence that this witness Lackey was an accomplice in the commission of the offense charged, his testimony must have been corroborated by other evidence in the case before they would be authorized to convict the defendant. If the charge was asked for the purpose of showing interest, bias, partiality, or prejudice upon the part of the witness as against the defendant, it. was too vague and uncertain for this purpose, and there was no error in its refusal. Moreover, the court in his oral charge instructed the jury “to take the testimony of tlie witnesses as given from the stand, and in considering it you have a right to look at their manner of testifying, to consider the reasonableness of their story, and to consider tlie interest of any of the witnesses in the outcome of the trial, if any witness has shown any interest.”

[6] Tlie court’s action in overruling the motion for a new trial must be affirmed, as it is not shown what, if any, evidence was offered upon the motion; therefore the presumption will be indulged that no sufficient evidence was introduced, and that the court ruled properly in denying the motion. King v. State, 16 Ala. App. 103, 75 South. 692; Crawley v. State, 16 Ala. App. 545, 79 South. 804.

The record is free from error, and the judgment of Conviction is affirmed.

Affirmed.

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Case Details

Case Name: Fearn v. State

Court Name: Alabama Court of Appeals

Date Published: Apr 19, 1921

Citations: 90 So. 37; 18 Ala. App. 122; 1921 Ala. App. LEXIS 105; 8 Div. 815.

Docket Number: 8 Div. 815.

Court Abbreviation: Ala. Ct. App.